United States District Court, W.D. Michigan, Southern Division
ORDER REGARDING LEAVE TO PROCEED IN FORMA PAUPERIS ON
APPEAL AND DENYING CERTIFICATE OF APPEALABILITY
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE.
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. On September 3, 2017, the Court entered a
judgment denying the petition. (ECF No. 20.) Petitioner now
has filed a notice of appeal. Petitioner is seeking a
certificate of appealability (taken from the notice of
appeal) as well as leave to proceed on appeal in forma
pauperis (ECF No. 24).
Rule of Appellate Procedure 3(e) provides that the appellant
must pay all required fees at the time a notice of appeal is
filed with the district court. The docketing fee for a case
on appeal is $500.00. See 28 U.S.C. § 1913; 6 Cir.
I.O.P. 3; Court of Appeals Miscellaneous Fee Schedule §
1 (Dec. 1, 2013). In addition, under 28 U.S.C. § 1917, a
$5.00 filing fee must be paid to the district court.
Petitioner has failed to pay the required fees.
prisoner who is unable to pay the required filing fees may
seek leave to appeal in a § 2254 action pursuant to Rule
24(a) of the Federal Rules of Appellate Procedure.
Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir.
1997). Petitioner has complied with Rule 24(a), which
requires him to file a motion for leave to proceed in
forma pauperis and an affidavit showing his inability to
pay the required fees (as prescribed by Form 4 of the
Appendix of Forms), his belief that he is entitled to
redress, and a statement of the issue he intends to present
on appeal. The documents show that Petitioner is unable to
pay the filing and docket fees required for an appeal. In
light of his indigence, Petitioner may proceed in forma
pauperis on appeal without prepaying or giving security
for fees and costs. Fed. R. App. P. 24(a)(2). Therefore,
Petitioner is not required to pay the $505.00 fee for filing
an appeal. See Kincade, 117 F.3d at 951 (holding
that 28 U.S.C. § 1915(b) provides that the fee
provisions of the Prison Litigation Reform Act of 1995 do not
apply to an appeal from a decision on an application for
28 U.S.C. § 2253(c)(1), a petitioner may not appeal in a
habeas case unless a circuit justice or judge issues a
certificate of appealability. Rule 22 of the Federal Rules of
Appellate Procedure makes clear that district judges have the
authority to issue a certificate of appealability. Fed. R.
App. P. 22(b). The filing of a notice of appeal that does not
specify the issues that petitioner seeks to have reviewed on
appeal will be deemed a request for review of all issues.
In re Certificates of Appealability, 106 F.3d 1306,
1307 (6th Cir. 1997) (Admin. Ord.). Under 28 U.S.C. §
2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue
if a petitioner has demonstrated a “substantial showing
of a denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). The standard a petitioner must meet
depends on whether the issues raised in the petition were
denied on the merits or on procedural grounds.
the Court denied the petition on the merits. To warrant a
grant of the certificate, “[t]he petitioner must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong.” Slack v. McDaniel, 529 U.S. 473,
484 (2000). “A petitioner satisfies this standard by
demonstrating that . . . jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322,
326 (2003). In applying this standard, the Court may not
conduct a full merits review, but must limit its examination
to a threshold inquiry into the underlying merit of
petitioner's claims. Id.
this standard, this Court finds no basis for issuance of a
certificate of appealability. The Court has already rejected
Petitioner's claims of constitutional error under the
standards set forth in the Antiterrorism and Effective Death
Penalty Act. Petitioner has not pointed to any flaw in the
Court's reasoning or any issue of fact or law overlooked
in the adjudication of his petition. The Court finds that
reasonable jurists could not conclude that this Court's
dismissal of Petitioner's claims was debatable or wrong,
and therefore, the Court will deny Petitioner a certificate
IT IS ORDERED that Petitioner's motion
for certificate of appealability, taken from the notice of
appeal (ECF No. 21), is DENIED.
IS FURTHER ORDERED that Petitioner's motion for
leave to proceed in forma pauperis on appeal (ECF
No. 24) is GRANTED.
This Court notes that pursuant to 28
U.S.C. § 2254 and Rule 24(a)(3) of the Federal Rules of
Appellate Procedure, it is not required to address whether
the instant appeal is taken in good faith because Petitioner
did not proceed in forma pauperis in the district